In a Wall Street Journal op-ed released this morning, FCC Chairman Ajit Pai previewed the draft order which the Commission will release tomorrow, allowing the public to comment in advance of the December 14 meeting. Pai is the first chairman to publish such orders in advance of meetings. The forthcoming order will reverse the FCC’s broad claims of power over the Internet, restoring the light-touch approach to Internet regulation that had commanded bipartisan support until 2010. Chairman Pai would maintain the 2010 transparency rule, based on uncontroversial legal authority, but the FCC’s other net neutrality rules would be deleted for lack of legal basis.
“Net neutrality isn’t dying, it’s just going to be protected differently — but there will be much more consistency than most people realize,” explained Berin Szóka, President of TechFreedom. “Yes, the FCC will turn over responsibility for policing net neutrality to the FTC, DOJ, and state attorneys general on a case by case basis, and there will no longer be formal rules. But the FCC’s transparency rule will actually maintain a smooth transition. The FTC and state AGs will have an easy job holding broadband companies to their disclosures about network management. Proving deception doesn’t require any elaborate showing of injury, just that customers didn’t get what they were promised.”
“Pai’s critics will object that companies could then do whatever they wanted as long as they’re transparent about it,” continued Szóka. “It’s highly unlikely that any broadband provider will declare its intention to start blocking: John Oliver’s wit is far more effective than any government regulator at checking such abuse. But if they did, even Title II couldn’t stop them. The FCC’s current rules have always allowed providers who wanted to offer a curated experience of the Internet to do so. This subtle caveat became crucial for the D.C. Circuit in upholding the rules: Judges Srinivasan and Tatel dismissed First Amendment challenges to the rules because the FCC’s rules always turned on the promises ISPs made to their customers. In other words, the FCC’s current conduct rules are only window dressing for what is, at heart, simply a disclosure rule. Pai is simply calling this legal charade to an end. The FTC and state AGs will be no less effective at enforcing this disclosure rule than the FCC was. And on top of the disclosures companies make, the FTC, DOJ, and state AGs will have broad power to punish unfair practices that harm consumers and anti-competitive practices that violate the antitrust laws.”
“In short, Szóka concluded, “nothing will change except the most important thing: the FCC will no longer be claiming broad power to regulate Internet services. We’ll simply return to the bipartisan consensus expressed in the 1996 Telecom Act that the Internet should remain ‘unfettered by Federal or State regulation.’ The FCC’s claims of power over the Internet applied not only to broadband providers but other Internet services, too. In particular, the FCC’s justification for reclassifying wireless services opened the door for the FCC to regulate any communications service as a common carrier merely for using an IP address. That’s why leading VoIP entrepreneurs joined TechFreedom in challenging the FCC’s 2015 Order. And the FCC’s 2010 claim that Section 706 is a grant of authority could be used to regulate not only broadband but any communications service. Ajit will be remembered as the Chairman to drew a line in the sand against the FCC’s regulation of the Internet.”